Dalton v. Colvin

Filing 22

ORDER Affirming the Commissioner's Decision. Signed on 8/5/15 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
DENNIS RAY DALTON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:14-CV-0314-DGK-SSA

ORDER AFFIRMING THE COMMISSIONER’S DECISION
This action seeks judicial review of the Acting Commissioner of Social Security’s (“the
Commissioner”) decision denying Plaintiff Dennis Dalton’s application for Social Security
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C.
§§ 401–434. The Administrative Law Judge (“ALJ”) found Plaintiff had performed substantial
gainful activity after his alleged onset date, but, assuming for the sake of argument that this work
was merely unsuccessful work attempts, continued his analysis. The ALJ then found Plaintiff
had several severe impairments, but retained the residual functional capacity (“RFC”) to perform
a reduced range of sedentary work, including some of his past relevant work.
After carefully reviewing the record and the parties’ arguments, the Court finds the ALJ’s
opinion is supported by substantial evidence on the record as a whole. The Commissioner’s
decision is AFFIRMED.

Procedural and Factual Background
The complete facts and arguments are presented in the parties’ briefs and are repeated
here only to the extent necessary.
Plaintiff filed his application on June 3, 2011, alleging a disability onset date of October
1, 2010. The Commissioner denied the application at the initial claim level, and Plaintiff
appealed the denial to an ALJ. The ALJ held a hearing, and on January 25, 2013, issued a
decision finding Plaintiff was not disabled. The Appeals Council denied Plaintiff’s request for
review on January 31, 2014, leaving the ALJ’s decision as the Commissioner’s final decision.
Plaintiff has exhausted all administrative remedies and judicial review is now appropriate under
42 U.S.C. § 405(g).
Standard of Review
The Commissioner follows a five-step sequential evaluation process to determine
whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by
reason of a medically determinable impairment that has lasted or can be expected to last for a
continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).
The five-step sequence involves determining whether (1) a
claimant’s work activity, if any, amounts to substantial gainful
activity; (2) his impairments, alone or combined, are medically
severe; (3) his severe impairments meet or medically equal a listed
impairment; (4) his residual functional capacity precludes his past
relevant work; and (5) his residual functional capacity permits an
adjustment to any other work. The evaluation process ends if a
determination of disabled or not disabled can be made at any step.
Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632 n.1 (8th Cir. 2014) (emphasis added); see 20
C.F.R. §§ 404.1520(a)–(g). Through Step Four of the analysis the claimant bears the burden of
showing that he is disabled. King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009). After the

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analysis reaches Step Five, the burden shifts to the Commissioner to show that there are other
jobs in the economy that the claimant can perform. Id.
A federal court’s review of the Commissioner’s decision to deny disability benefits is
limited to determining whether the Commissioner’s findings are supported by substantial
evidence on the record as a whole. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).
Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind
would find it sufficient to support the Commissioner’s decision. Id. In making this assessment,
the court considers evidence that detracts from the Commissioner’s decision, as well as evidence
that supports it. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). The court must “defer
heavily” to the Commissioner’s findings and conclusions. Hurd v. Astrue, 621 F.3d 734, 738
(8th Cir. 2010). The court may reverse the Commissioner’s decision only if it falls outside of the
available zone of choice, and a decision is not outside this zone simply because the court might
have decided the case differently were it the initial finder of fact. Buckner, 646 F.3d at 556.
Discussion
Plaintiff argues the ALJ erred at Step Four in determining his RFC because he failed to
properly analyze the opinions of his longtime primary care physician, Dr. James Jaliszewshi,
M.D., and his treating vascular surgeon, Dr. Joseph Martin, M.D. The Court will not analyze
this argument, however, because the Court is compelled to affirm the Commissioner’s decision
for another reason: The ALJ rightly found at Step One that Plaintiff has engaged in substantial
gainful activity since his alleged onset date.
In the second paragraph of his opinion, the ALJ found that:
The claimant worked after the alleged disability onset date and this
work activity did rise to the level of substantial gainful activity.
The claimant's attorney suggested these were unsuccessfully work
attempts because there is a break of thirty days between the jobs,

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but this argument is not persuasive. In Exhibit 11E, the claimant
reports he worked for Partners in Behavioral Milestones from
December of 2011 until April of 2012, and for Advance America
from May of 2012 until July of 2012. Prior to that, the claimant
worked for England's Action from December of 2010 to February
of 2011 (Exhibits 11E/2-7 and 9-11). Thus, since his alleged onset
date, the claimant has not had a period of twelve months where he
did not engage in substantial gainful activity.
R. at 16. The record confirms these findings. Plaintiff’s alleged onset date is October 1, 2010.
But Plaintiff testified that from May until July 2012 he worked full-time for Advance America as
an assistant manager. R. at 41. Although he contends he could not perform the job, he
acknowledged that at the time he left, the company wanted to promote him and make him a
manager. R. at 41. Furthermore, in his briefing to this Court, Plaintiff does not dispute the
ALJ’s finding that this work activity rose to the level of substantial gainful activity.
The law is clear that if a claimant is able to engage in substantial gainful activity, he is
not disabled, and the disability analysis is complete. 20 C.F.R. § 404.1571 (“If you are able to
engage in substantial gainful activity, we will find that you are not disabled.”); Kemp ex rel.
Kemp, 743 F.3d at 632 n.1 (“The evaluation process ends if a determination of disabled or not
disabled can be made at any step.”). Although the ALJ proceeded with the rest of the sequential
evaluation out of an abundance of caution, R. at 16, there was no need to do so.
The record supports the ALJ’s finding at step one that Plaintiff was not disabled.
Therefore, the Court must affirm. See id.
Conclusion
For the reasons discussed above, the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.
Date:

August 5, 2015

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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